April 14, 1994

Appeal of

KAREN EDWARDS

Under Contract No. HCR 988BU   

PSBCA No. 3473

APPEARANCE FOR APPELLANT:

Karen Edwards

APPEARANCE FOR RESPONDENT:

Mark Brent Ezersky, Esq.

OPINION OF THE BOARD ON RESPONDENT'S MOTION TO DISMISS

            Respondent has filed a Motion to Dismiss alleging that Appellant's appeal from a Contracting Officer's final decision assessing Appellant $392.32 was untimely.  Although given an opportunity to oppose the motion Appellant has not done so.

FINDINGS OF FACT

            1.  Appellant was awarded Emergency Transportation Services Contract No. 998BU on January 16, 1993, for a term to end April 30, 1993, for casing and mail delivery on a route emanating from the Leavenworth, Washington Post Office.  Appellant's rate of compensation was to be $1.19996 per mile (Appeal File (AF)-4, 5).

            2.  The Contract's General Provisions (PS Form 7407T) contained a "Termination By The Postal Service For Default Clause" (GP-16) which stated in pertinent part:

"(a) The Contracting Officer may terminate this contract for default:

(1)  For Contractor's failure to perform service according to the terms of the contract."  (AF-5)

            3.  General Provision 13, "Damages", allowed the Contracting Officer to deduct from compensation due the contractor, as damages, a sum fixed by the Contracting Officer for failure to perform under the contract (Id.).

            4.  The contract's "Claims and Disputes" clause (GP-2) provided that a Contracting Officer's final decision "shall be final and conclusive and not subject to review by any forum, tribunal or government agency unless:"

"(i) The Contractor appeals such decision to the Postal Service Board of Contract Appeals within 90 days after the date the Contractor receives the Contracting Officer's final decision [or appeals to the U. S. Court of Federal Claims within 12 months]."  (Id.)

            5.  Appellant ceased performing her contract at the close of business on January 16, 1993, and her contract was terminated for default by the Contracting Officer on the same day under the Contract's General Provision 16(a)(1)(AF-3).

            6.  On April 22, 1993, by final decision the Contracting Officer assessed Appellant $392.32 for damages incurred as the result of Appellant's failure to perform her contract (AF-2).  The final decision clearly advised Appellant of her appeal rights.

            7.  Appellant received the Contracting Officer's final decision on April 26, 1993 (Exhibit one to Respondent's Memorandum).  Appellant's notice of appeal, dated August 11, 1993, was received by the Contracting Officer on August 13, 1993 (AF-1).  The appeal was thereafter docketed as PSBCA No. 3473.

DECISION

            This Board's jurisdiction is based on the Contract Disputes Act of 1978 which in Section 6(c), (41 U.S.C. §606) requires a contractor to file an appeal from a Contracting Officer's final decision to an agency board of contract appeals within 90 days of receipt.  This Board lacks jurisdiction to consider an appeal where the time period has not been complied with.  Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982).

            Here Appellant did not mail her appeal until August 11, 1993, some 107 days after receipt of the Contracting Officer's final decision assessing the $392.32 amount of damages.  The contract's Claims and Disputes clause, implementing the jurisdictional language of the Contract Disputes Act (41 U.S.C. §606), states that the Contracting Officer's final decision is not subject to review by this Board, unless the contractor files an appeal with the Board within 90 days after receipt of the final decision.  This provision was clearly set forth in Appellant's contract, thus, along with the contents of the Contracting Officer's decision, providing her with full knowledge of her appeal rights.

            Accordingly, we hold Appellant's appeal to be untimely filed and therefore one over which we have no jurisdiction.  Respondent's Motion to Dismiss is granted and this appeal is dismissed without prejudice to Appellant's right to pursue her remedies in another forum under the Contract Disputes Act.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Board Member